Court of Appeal for Ontario

Citation: Quest Capital Corp. v. Lakefront Estates Corporation, 2009 ONCA 441

Date: 20090527

Docket: C49690

Between:

Quest Capital Corp.

Plaintiff (Respondent)

and

Lakefront Estates Corporation, Michael Moldenhauer, Moldenhauer Developments Inc., 2036497 Ontario Inc., 2065515 Ontario Inc., 2068898 Ontario Inc., and Northmount Village Inc.

Defendants (Appellants)

Counsel:

Alan Price, for the defendants (appellants)

J. Davis-Sydor, for the plaintiff (respondent)

Heard & released orally: April 15, 2009

On appeal from the judgment of Justice Sandra Chapnik of the Superior Court of Justice dated October 31, 2008

ENDORSEMENT

[1] This is an appeal of the motion judge’s failure to allow the appellants to amend their statement of defence to include a counterclaim and her refusal to stay the summary judgment she granted on a mortgage in default pending the outcome of the proposed counterclaim. They also appeal her refusal to enjoin the respondent from exercising the power of sale amended by the mortgage

[2] The proposed counterclaim before the motion judge related to an improvident sale. That sale did not take place. The motion judge did not err in regarding the proposed counterclaim as no longer viable.

[3] The appellants may move in the Superior Court to file a different claim if they so wish. The appellants claimed that the respondent lacked good faith in exercising its power of sale, that it was negligent and unlawfully interfered with the appellants’ economic interests in the way it dealt with the mortgaged property. That claim was not so compelling that the motion judge was obligated to exercise her discretion to stay the summary judgment. Nor did the appellants establish that they were entitled to an injunction. In fact, there was no pending sale for the motion judge to enjoin.

[4] Given the terms of the forbearance agreements, the appellants cannot argue that the notice of sale is not valid and that a new notice of sale is required. Nor can they rely on the delay in enforcement due to the respondent’s forbearance to invalidate the notice of sale.

[5] The appeal is dismissed. Costs are fixed in the amount of $9,257 inclusive of disbursements and GST.

“R.G. Juriansz J.A.”

“J. MacFarland J.A.”

“David Watt J.A.”